Madhya Pradesh High Court
Shyamlal Barela vs The State Of Madhya Pradesh on 2 May, 2025
Author: Hirdesh
Bench: Anand Pathak, Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE JUSTICE ANAND PATHAK &
HON'BLE JUSTICE HIRDESH, JJ
ON 2ND OF MAY, 2025
CRIMINAL APPEAL NO. 4947 OF 2023
SHYAMLAL BARELA
Versus
THE STATE OF MADHYA PRADESH
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Appearance:
Shri Ashok Kumar Jain and Ms. Nikita Jain- learned Counsel for appellant.
Shri Vijay Sundaram- learned Public Prosecutor for respondent/State.
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JUDGMENT
Per Justice Hirdesh:-
Today, case is listed on I.A.No.24529 of 2024, second application under Section 389(1) of CrPC for suspension of jail sentence and grant of bail, moved on behalf of sole appellant- Shyamlal Barela. His first application (IA No. 17150 of 2023) was dismissed as withdrawn vide order dated 05-10-2023.
With consent of both the parties, matter is heard finally on merits Accordingly, I.A. No.24529 of 2024 stands closed. (2) The instant criminal appeal has been filed by appellant- Shyamlal Barela from jail challenging the judgment of conviction and order of sentence dated 04-
03-2020 passed by Third Additional Sessions Judge, Guna (MP) in Sessions Trial No.75 of 2013, whereby appellant has been convicted under Section 449 of IPC and sentenced to undergo ten years' rigorous imprisonment with fine of Rs.1,000/- in default of payment of fine to further undergo three months' additional rigorous imprisonment and under Section 302/34 of IPC and sentenced to undergo Life Imprisonment with fine of Rs.2,000/-, in default of payment of fine to further undergo six months' additional rigorous imprisonment. Both sentences have been directed to run concurrently.
2(3) Prosecution case, in brief, is that at around 11:20 in the night of 04/05-11- 2012, complainant Noor Singh lodged a report at Police Outpost Umri against Sampat Barela and his son Shyamlal Barela (present appellant-accused) to the effect that he is living in Agara and his elder brother Sur Singh was sleeping alone in the hutment near his house. In the morning, one Bakhtwar Singh informed him that he along with Bhairu Singh, Bhur Singh and other people of Village had gone to search their buffaloes and when they returned in evening and slept in their houses, they came to know that Sur Singh, who was sleeping in his hutment was not found well and thereafter, when his sisters-in-law Pyari Bai and Nirmala alias Meera Bai tried to woke up Sur Singh, Sur Singh told them in the night that, Sampat Barela and his son Shyamlal (appellant-accused) had beaten him over a land dispute and caused him injuries. When they were waiting for a tractor to take Sur Singh to hospital for his treatment, he died in the evening at around 05:00 PM due to injuries sustained by him on his head, back, buttock and other parts of his body. It is further alleged that his sisters-in-law Pyari Bai and Nirmala alias Meera Bai had told Sursingh for lodging a report on the basis of which, aforesaid dehati nalishi vide No.08 of 2012 was recorded and on the basis of such information given by complainant Noor Singh, Merg No.06/2012 under Section 174 of CrPC was recorded and merg was sent to PS Myana vide Ex.P6 and Head Constable Bahadur Singh Raghuvanshi (PW-7) thereafter registered Crime No.263 of 2012 for offence punishable under Section 302/34 of IPC vide FIR Ex.P11 against accused and actual Merg No.38 of 2012 under Section 174 of CrPC was recorded regarding the death of Sur Singh vide Ex.P10. (4) Further case of prosecution is that MS Tomar (PW-8) went to spot of incident from police outpost Umri and on the basis of information of complainant Noor Singh, he had prepared a spot map vide Ex.P8 and also prepared Panchnama of the dead body of deceased Sur Singh on the basis of information given by witnesses vide Ex.P1. Thereafter, the dead body of deceased Sur Singh was sent for postmortem to District Hospital, Guna where Dr.Manish Jain (PW-6) conducted the postmortem of deceased and as per PM report Ex.P9, it was found 3 that deceased died due to head injury and it was due to coma. (5) Further case of prosecution is that during investigation, the Investigating Office H.S. Yadav (PW-10) recorded statements of witnesses Nirmala alias Meera Bai, Rumal Singh, Sardar Singh, Harisingh, Noor Singh and Pyari Bai under Section 164 of CrPC and arrested co-accused Sampat Barela and at his behest, one wooden stick (danda) which was used in the incident was seized vide seizure memo Ex.P5 and the same was sent to State Forensic Laboratory for chemical testing from where the report Ex.P13 was received. Appellant-accused Shyamlal, the son of co-accused Sampat Barela was found absconding. Thereafter, he was arrested as per arrest memo Ex.P15. After completion of investigation and other formalities, charge sheet was filed before the Court of JMFC from where the case was committed to the Sessions Court for trial.
(6) Charges were framed against appellant-accused. Accused denied committing the alleged crime and pleaded trial. In his statement recorded under Section 313 of CrPC, accused pleaded that he has been falsely implicated.. Sur Singh was murdered by his brother because Sur Singh had illicit relationship with his sister-in-law Pyari Bai.
(7) In order to prove its case, the prosecution examined as many as ten witnesses. In order to lead evidence, appellant did not examine any witness in his defence. After conclusion of trial, the learned trial Court convicted present appellant and sentenced him, accordingly for aforesaid offence, as mentioned in Para 2 of this judgment. Hence, this appeal.
(8) It is contended on behalf of appellant learned trial Court has committed an error in convicting present appellant without properly evaluating the prosecution evidence available on record. There are contradictions and inconsistencies in the evidence of prosecution witnesses. It is further contended that there is no eye- witness to the incident. Besides this, the incident took place in the midnight and brother of complainant Hari Singh Barela (PW-1) in his Court statement deposed that the report was lodged by Noor Singh and the police wrote his statement after asking Noor Singh and this witness also stated in Para 9 of his evidence that from 4 the morning till evening, deceased Sur Singh was not even taken to hospital for his treatment so that, Sur Singh could not get proper medical aid due to which, he died in the evening. Similarly, complainant Noor Singh in his Court statement deposed that at the time of incident, he was not present at the place of occurrence and he was told about the incident by his brother and his sisters-in-law, therefore, this witness is not an eye-witness of incident although he is the real brother of deceased Sur Singh.
(9) It is further contended that no independent witness has been examined by the prosecution and the evidence of witnesses, whose evidence was recorded in the Court all of them are interested witnesses and by relying their evidence, the trial Court has passed the impugned judgment in convicting the present appellant. It is further submitted that Dr. Manish Jain (PW-6) in his cross-examination has admitted that if the deceased gets proper medical treatment immediately, his life could have been saved which appears that death of deceased was due to negligence of his family members. In spite of this, appellant has been wrongly convicted by the trial Court under Section 302 of IPC.
(10) It is further contended on behalf of appellant that deceased died due to single lathi blow and there was no intention of accused to commit murder of deceased leading to death of deceased. Stick is not a lethal weapon that can be used for committing murder and, hence, death of deceased is culpable homicidal not amounting to murder. At the most, appellant is liable to be convicted either under Section 304 Part I or Part II of IPC for which appellant has already undergone more than seven years of jail incarceration. Under these circumstances, the appellant prayed for setting aside the impugned judgment of conviction and order of sentence.
(11) On the contrary, learned Counsel for the State opposed the contentions of appellant and submitted that appellant along with co-accused Shyamlal with an intention to kill reached the spot by stick due to previous land dispute and caused lathi blow on the vital part of deceased i.e. on the head due to which, the deceased died. Therefore, no leniency can be adopted and learned trial Court has rightly 5 been convicted the appellant under Section 302/34 of IPC. Hence, appeal filed by appellant deserves to be dismissed.
(12) Heard learned counsel for the parties and perused impugned judgment as well as record.
(13) The first question for determination of present appeal is whether death of deceased was homicidal in nature or not ?
(14) Dr. Manish Jain (PW-6) in his evidence deposed that on 06-11-2012, he was posted as Medical Officer in District Hospital, Guna. On that date, Police Constable Dilip Sharma of PS Myana brought dead body of the deceased for postmortem examination. He conducted autopsy of the deceased. There was bleeding on the nose, on the left and right side of back, there were lacerated wounds as well as on thigh, buttock and right side of neck, there were also incision marks. The right temporal bone of skull of deceased was fractured with brain haemorrhage in the middle cleaner fossa. As per opinion of doctor, the cause of death was due to coma and head injury. Duration of death of deceased was within about 24 hours before postmortem examination. Dr. Jain in Para 2 of his cross-examination also deposed injuries of deceased which could have happened within 15-16 hours and admitted that from the hutment if raw copper balls and batons fall on the head of deceased, then this type of injury is possible and it is true that the viscera has turned pale due to bleeding from the body of deceased and if deceased had got good medical care immediately after the incident, he could have survived and his life could be saved.
(15) From the evidence of Dr. Jain, it is clear that cause of death of deceased was homicidal in nature.
(16) The next question for determination of appeal is whether appellant had inflicted lathi blow on the head of deceased or not ? It would be apposite for this Court to go through evidence of following material witnesses. (17) Hari Singh Barela (PW-1), who is brother of deceased Sur Singh, in his deposition stated that on the date of incident around 11:00 in the night, on hearing a shout, when he reached the spot, he saw that accused Sampat and Shyamlal were 6 beating his brother Sur Singh with lathi. He ran away from place of incident due to fear. When they reached there, on being asked, Sur Singh told that Sampat and Shyamlal were beating him. They went to village to look for a tractor, but the tractor was not found in village. They did not go anywhere and stayed at home. He had written a report of the incident. This witness in Para 2 of his cross- examination deposed that Noor Singh had gone to lodge the report and he had not gone with Noor Singh to lodge the report. This witness in Para 3 of his cross- examination deposed that Sur Singh was not treated till 05:00 in the evening because of non-availability of tractor in village and other vehicles like bullock cart was not available at that time. This witness admitted that they had a land dispute with Shyamlal over boundary of land. This witness in Para 5 of her cross- examination denied that Pyari Bai and Sur Singh had illicit relations, therefore, Bhairo Singh killed Sur Singh.
(18) Pyari Bai (PW-4), who is sister-in-law (Bhavi) of deceased, in her chief deposed that his brother-in-law Sur Singh used to repair bicycles and used to sleep there. She did not go to spot out of fear. At night, Bhairo Singh Pratap and Bhur Singh had gone to look for buffalo of village. She heard sound of shouting. On hearing sound, she and her sister-in-law Nirmala Bai and Reshambai and brother- in-law Hari Singh went to spot of incident, where they saw that accused Sampat and Shyam Lal beat Sur Singh with lathi and stones. Sur Singh had got injuries on his head and chest. This witness in Para 2 of her chief deposed that due to non- availability of tractor, they could not take Sur Singh to hospital and when tractor was found, Sur Singh was kept in it and brought to Guna District Hospital. This witness in Para 3 of her cross-examination deposed that Sur Singh and Ampat Singh had a fight earlier over the land dispute and Sampat had said eight to ten days before the incident that he will kill Sur Singh.
(19) Noor Singh (PW-2), who is younger brother of deceased Sur Singh in his evidence deposed that his brother Sur Singh had told him that accused Sampat and Shyamlal together had assaulted him. He had lodged a report of the incident at PS Umri vide Ex.P7. This witness in Para 2 of his evidence deposed that in his police 7 diary statement, he had deposed that Sur Singh had told his sister-in-law Pyari Bai, Nirmla Bai and brother Har Singh about the incident. They were looking for a tractor to take Sur Singh for treatment, but could not find one. Sur Singh died at that time and was lying on a cot in the hut. There were bruises on his head and on his right side. This witness in Para 5 further denied that Sur Singh had illicit relations with Pyari Bari that is why Bhairo Singh killed Sur Singh. When he reached the spot Soor Singh was lying dead there and he did not see, who killed Sur Singh. Hari Singh told him about this incident.
(20) Nirmala Bai (PW-5) is sister-in-law (Bhavi) of deceased in her evidence deposed that the incident was happened at night. Her brother-in-law Sur Singh used to run a bicycle puncture repair shop in a hut which is far from the house. Accused Sampat, Shyamlal and Sur Singh had a land dispute. She, her sister-in- law Pyari Bai and brother-in-law Hari Singh heard the shouts during the fight and due to fear they did not go to spot. On the next day morning, when they reached the hut, Sur Singh said that Shyamlal and Sampat had beaten him with lathi. This witness in Para 2 of her evidence deposed that due to non-availability of tractor, they could not bring Sur Singh to hospital and around 04:00-05:00 in the evening, Sur Singh died. After this, when the tractor was found, Sur Singh was kept in it and brought to Guna Hospital where police had enquired about the incident. This witness in Para 4 further deposed that due to head injury, Sur Singh was lying unconscious when she and Pyari Bai reach the spot in the morning. After that, the Villagers took him to police station.
(21) Rumal Singh (PW-3), who is father of deceased in his evidence deposed that the incident happened on the night of Diwali. His son Sur Singh used to do repair motorcycle and bicycles and live in a hut. He was alone at the well near agricultural land at the time of incident. His son had gone to look for the buffaloes and his daughters-in-law were at home. When he came home, his family members told him name of Sampat about beating to Sur Singh. He did not remember who had gone to report the incident.
(22) From the evidence of above witnesses, there are some contradictions and 8 omissions in between their earlier statements given before the police and the Court statements. From the record, it shows that alleged incident was happened in the night around 11:00-12:00 and due to fear, none of the witnesses had gone to spot and on the next day morning, from deceased Sur Singh, it was known that accused Sampat and Shyamlal had inflicted lathi blows at the deceased over the land dispute. The deceased died in the evening.
(23) The next question for determination is whether death is culpable homicide amounting to murder or not ?
(24) The Indian Penal Code recognizes two kinds of Culpable Homicide. The first one is Culpable Homicide not amounting to Murder (Section 299 and 304 of the IPC) and another one is Culpable Homicide amounting to Murder (Section 300 and 302 of IPC). Section 304 of IPC provides punishment for Culpable Homicide not amounting to Murder. Under it, there are two kinds of punishments applying to two different circumstances:
(i) If the act by which death is caused is done with intention of causing death or such bodily injury as is likely to cause death, the punishment is imprisonment for life, or imprisonment of either description of a term which may extend to ten years and fine.
(ii) If the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of either description for a term which may extend to 10 years, or with fine, or with both.
(25) The provisions have been enshrined under Section 304 of IPC regarding punishment for culpable homicide not amounting to murder. Regarding awarding appropriate sentence to the accused, the Hon'ble Supreme Court in the matter of Gummukh Singh vs. State of Haryana (2009) 15 SCC 635 after considering catena of decisions of Jagrup Singh vs. State of Haryana (1981) 3 SCC 616, Gurmail Singh and Others vs. State of Punjab (1982) 3 SCC 185, Kulwant Rai vs. State of Punjab (1981) 4 SCC 245, Jagtar Singh vs. State of Punjab (1983) 2 SCC 342, Hem Raj vs. State (Delhi Administration), [1990] Supp. SCC 291, Abani K. Debnath and Another vs. State of Tripura (2005) 13 SCC 422 and Pappu vs. State of MP (2006) 7 SCC 391. The Hon'ble Apex Court in the matter 9 of Gurmukh Singh (supra) in detail has discussed following relevant factors, which are required to be taken into consideration before awarding appropriate sentence to accused.
''23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:
a) Motive or previous enmity;
b) Whether the incident had taken place on the spur of the moment;
c) The intention/knowledge of the accused while inflicting the blow or injury;
d) Whether the death ensued instantaneously or the victim died after several days;
e) The gravity, dimension and nature of injury;
f) The age and general health condition of the accused;
g) Whether the injury was caused without pre-
meditation in a sudden fight;
h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;
i) The criminal background and adverse history of the accused;
j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;
k) Number of other criminal cases pending against the accused;
l) Incident occurred within the family members or close relations;
10m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?
These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.'' (26) At this stage, learned Counsel for the appellant submits that Coordinate Bench of this Court vide judgment dated 11th of September, 2023 in connected Criminal Appeal No.739 of 2013 has altered the conviction of co-accused Sampat Barela (who is father present appellant) from offence under Section 302 read with Section 34 of IPC to Section 304 Part II of IPC on the same set of evidence available on record by confirming culpability of co-accused Sampat Barela. Jail sentence of co-accused Sampat Barela has been reduced from Life Imprisonment to the period of already undergone by him. Therefore, a leniency may be adopted in favour of present appellant.
(27) The Hon'ble Apex Court in the matter of Gurpal Singh v. State of Punjab, (AIR 2017 SC 471) has observed as under:-
''10. However, in the singular facts of the case and noticing in particular, the progression of events culminating in the tragic incident, we are inclined to reduce the sentence awarded to him. Incidentally, the occurrence is of the year 2004 and meanwhile twelve years have elapsed. Further, having regard to the root cause of the incident and the events that sequentially unfolded thereafter, we are of the comprehension that the appellant was overpowered by an uncontrollable fit of anger so much so that he was deprived of his power of self-control and being drawn in a web of action reflexes, fired at the deceased and the injured, who were within his sight. The facts do not commend to conclude that the appellant had the intention of eliminating any one of those fired at, though he had the knowledge of the likely fatal consequences thereof. Be that as it may, on an overall consideration of the fact situation and also the time lag in between, we are of the view that the conviction of the appellant ought to be moderated to one under Sections 304 Part 1 IPC and Further, considering the facts of the case in particular, according to us, it would meet the ends of justice, if the sentence for the offences is reduced to the period already undergone. We order accordingly."11
(28) Similarly, in the matter of Chand Khan Vs.State of M.P. 2006(3) M.P.L.J. 549, the Division Bench of this Court has also converted conviction of appellant- accused therein in attaining facts and circumstances of the case and held as under:-
"10. If the present case is considered in the light of the aforesaid decisions of the Supreme Court, it would show that the appellants caused single injury on the head of the deceased by farsa, which is a sharp edged weapon, but unfortunately Aziz Khan (PW-11) and Ishaq Khan (PW-13) have stated that he gave lathi blow on the head of the deceased. Even after considering this contradictory evidence it has to be taken into consideration that it is a case of single farsa blow inflicted by only appellant Chandkhan and appellant Naseem inflicted only lathi blow on the non-vital part of the body and in the absence of this evidence that the injury no.(i) was sufficient to cause death in the ordinary course of nature and also looking to the various other circumstances like that the accused as well as the deceased are close relatives and the deceased was a person of criminal background and the deceased himself, we find that the case will not fall within the purview of section 300, Indian Penal Code but it will fall under section 304 Part II, culpable homicide not amounting to murder.
11. Consequently, appeal is partly allowed. Conviction of appellants under section 302/34 Indian Penal Code, is set aside and instead they are convicted under section 304 part II, Indian Penal Code. "
(29) In view of above discussion and verdicts of the Apex Court as well as of this Court, the criminal appeal is partly allowed. So far as the culpability of appellant is concerned, we hereby confirm the findings given by the learned trial Court except conviction which is hereby altered to Section 304 Part II of IPC, instead of Section 302/34 of IPC.
(30) Accordingly, the instant criminal appeal so far as it relates to present appellant stands allowed in part by setting aside the judgment of conviction and order of sentence dated 04.03.2020 passed by Third Additional Sessions Judge, Guna (MP) in Sessions Trial No.75 of 2013 and instead, he is convicted under Section 304 Part II of IPC and sentenced to suffer rigorous imprisonment of seven years. The fine amount as awarded by learned Trial Court stands maintained. In 12 default of payment of fine, accused shall have to go further imprisonment as awarded by learned Trial Court. Without disturbing the finding recorded against appellant-accused under Section 449 of IPC, the sentence awarded to appellant by the Trial Court is modified and instead the period of ten years rigorous imprisonment, the appellant is sentenced to the period of seven years. If he is completed the sentence of seven years including pre and post-conviction period, then he may be set at free. On completion of aforesaid period of seven years' jail sentence of appellant and on verifying the same by the jail authorities concerned, appellant shall be released, if not required in any other case. (31) A copy of this judgment along-with record be sent to concerned Trial Court for necessary information, so also a copy of this judgment be forwarded to concerned Jail Authority for information and compliance.
(ANAND PATHAK) (HIRDESH)
JUDGE JUDGE
MAHE
MKB Digitally signed by MAHENDRA BARIK
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PRADESH BENCH GWALIOR, ou=HIGH
COURT OF MADHYA PRADESH BENCH
GWALIOR,
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BARIK
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BARIK
Date: 2025.05.22 15:51:28 +05'30'